IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James Harold Lawson, :

Plaintiff : Civil Action 2:12-cv-00533

v. : Judge Smith

Jessica McQuate and Dino Cardaras, : Magistrate Judge Abel

Defendants

:

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge on defendants Jessica McQuate and

Dino Cardaras’ September 21, 2012 motion for judgment on the pleadings (doc. 17).

I. Allegations in the Complaint

The complaint alleges that on July 21, 2010 plaintiff James H. Lawson, Jr. was

seen by defendant nurse Dino Cardaras for complaints of a headache, dizziness, fever

and tightness in his chest. Cardaras dismissed the large reddish spot/mark on Lawson's

left leg as heat rash. He did not take Lawson's temperature because there were no probe

covers, but Cadaras nonetheless recorded his temperature in his notes. Before leaving

the medical office, Lawson asked to see a doctor. That request was denied. Complaint,

¶¶ 5-6. It is the "Culture of Care" at the Chillicothe Correctional Institution to deny

medical care to inmates. Id., Complaint, ¶ 7.

Within 24 hours, Lawson was admitted to the Ohio State University Medical

Center, where he was placed in the infectious disease unit and given antibiotics. When

he returned to the Chillicothe Correctional Institution on July 27, he was to continue

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taking the prescribed antibiotics. But when he arrived at the prison, no steps were taken

to insure that he received the prescribed medication. Complaint, ¶¶ 2 and 7. Instead,

defendant nurse Jessica McQuate cleared Lawson for return to the general population,

where he did not receive the antibiotics. Complaint, ¶¶ 2-3. Lawson then experienced

increased pain and swelling in his left foot. His request for crutches was denied.

McQuate and Cardaras made no effort to assess or inquire into why Lawson needed

crutches. Lawson was returned to the Ohio State University Medical Center. Complaint,

¶ 3.

II. Arguments of the Parties

A. Defendants Jessica McQuate and Dino Cardaras

Defendants argue that this Court construed plaintiff’s complaint as a civil rights

action under 42 U.S.C. § 1983. In his response to defendant’s answer, plaintiff stated that

“his Civil Tort Complaint is not a Civil Rights 1983 action.” Doc. 16 at 1. Therefore,

defendants maintain that plaintiff’s claims are not actionable in this Court and should

be dismissed.

Plaintiff alleges that defendants engaged in medical negligence and that their

actions were willful and wanton. Under Ohio Revised Code §9.86, officers and

employees of the State of Ohio are statutorily immune from liability on state law claims

arising from the performance of their duties unless their actions were manifestly

outside the scope of their employment or official responsibilities or unless they acted

with malicious purpose, in bad faith, or in a wanton or reckless manner. The Ohio

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Court of Claims has “exclusive, original jurisdiction to determine, initially, whether the

officer or employee is entitled to personal immunity.” Ohio Rev. Code § 2743.02(F).

Defendant maintains that a state employee is immune from state law claims until the

Court of Claims has held that §9.86 is unavailable. 

B. Plaintiff James Lawson

In his memorandum in opposition to defendants’ motion, plaintiff seeks to

clarify his reply to defendants’ answer. Plaintiff maintains that in his complaint he did

not separate his factual allegations supporting his Eighth Amendment claim from his

claim for negligence. Plaintiff asks the Court to exercise supplemental jurisdiction over

his state law claims in addition to his federal claim.

III. Judgment on the Pleadings

In ruling on a motion for judgment on the pleadings, the Court accepts all

well-pleaded material allegations of the complaint as true. JPMorgan Chase Bank, N.A. v.

Winget, 510 F.3d 577, 581 (6th Cir.2007). The Court must then decide whether the

moving party is entitled to judgment as a matter of law. Id. This is the same standard

applied in deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Id.

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, a court must construe the complaint in the light most

favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.

Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th

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Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982). 

Although the court must apply a liberal construction of the complaint in favor of the

party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513

F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or

unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.

Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th

Cir. 1971). In reading a complaint, however, a court will indulge all reasonable

inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,

1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the

complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451

F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to

offer evidence to support the claims, rather than whether the plaintiff will ultimately

prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court

cannot consider extrinsic evidence in determining whether a complaint states a claim

upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.

To survive a motion to dismiss under Rule 12(b)(6), the allegations in a complaint

“must do more than create speculation or suspicion of a legally cognizable cause of

action; they must show entitlement to relief.” Lambert v. Hartman, 517 F.3d 433, 439 (6th

Cir. 2008), quoting League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th

Cir.2007) (emphasis in original). “Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice. Twombly, 550 U.S. at

555.

IV. Discussion

Rule 7(a) of the Federal Rules of Civil Procedure lists the permissible pleadings.

Rule 7(a)(7) provides that a reply to an answer is permissible “if the court orders one.”

Here, plaintiff was not granted leave to file a reply to an answer, and, as a result, the

Clerk of Court is DIRECTED to STRIKE document 16 from the docket.

Despite, plaintiff’s statement that his claim “is not a Civil Rights 1983 action”

(doc. 16 at 1), it is evident from reading the facts alleged in the complaint and document

16 that plaintiff intended to state a claim arising under the Eighth Amendment: 

It is the belief of this Plaintiff that Deliberate Indifference to serious

medical needs of inmates constitutes the unnecessary and wanton

infliction of pain and mental anguish that is protected by the Eighth

Amendment of the United States Constitution. The “serious need” has

been defined as one that has been diagnosed by a physician mandating

treatment. In this case the evidence is undisputed that Mr. Lawson was

admitted at O.S.U. Medical Center, within hours of being denied care by

the Defendants.

Under the Eighth Amendment’s prohibition against cruel and unusual

punishments, prisoners have a constitutional right to medical care. This

determination of a sufficiently serious medical need is predicated upon

the inmate demonstrating that he or she is incarcerated under conditions

imposing a substantial risk of serious harm. Failure to provide medical

treatment when circumstances clearly evince a need amounts to a

deprivation of constitutional due process. A prison official may be held

liable if he knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measure to abate it. Ohio

law provides civil remedies for medical negligence and wrongful death,

under O.R.C. 2125.01. 

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Doc. 16 at 3 (emphasis in original). Here, plaintiff misunderstands the vehicle for

bringing his claim. He apparently believes his claim based on deliberate indifference

can brought by claiming medical negligence rather by bringing a claim pursuant to 42

U.S.C. § 1983. In that regard, he is mistaken. Plaintiff has, however, stated sufficient

factual allegations to support a claim for a violation of his Eighth Amendment rights

that may be brought pursuant to Section 1983 in this Court.

To the extent that plaintiff seeks to bring a claim medical negligence, pursuant to

state law, defendants’ motion for judgment on the pleadings should be granted. Under

Ohio Revised Code §9.86, officers and employees of the State of Ohio are statutorily

immune from liability on state law claims arising from the performance of their duties

unless their actions were manifestly outside the scope of their employment or official

responsibilities or unless they acted with malicious purpose, in bad faith, or in a wanton

or reckless manner. The Ohio Court of Claims has “exclusive, original jurisdiction to

determine, initially, whether the officer or employee is entitled to personal immunity.”

Ohio Rev. Code § 2743.02(F). A state employee is immune from state law claims until

the Court of Claims has held that §9.86 is unavailable. Plaintiff has, however,

adequately stated a claim under Section 1983, and I recommend that this claim be

permitted to go forward. 

V. Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that

defendants Jessica McQuate and Dino Cardaras’ September 21, 2012 motion for

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judgment on the pleadings (doc. 17) be GRANTED to the extent that plaintiff seeks to

litigate a state law claim for medical negligence. The Magistrate Judge further

RECOMMENDS that plaintiff be permitted to prosecute his claim based on violations of

his Eighth Amendment rights. The Clerk of Court is DIRECTED to STRIKE document

16 from the docket.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);

United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,

380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not

raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel 

United States Magistrate Judge

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